Justice Ketanji Brown Jackson’s openness to an enforceable code of conduct for Supreme Court judges is obviously good and, oddly enough, remarkable. It is good because a code is worth nothing if it cannot be enforced. And it is remarkable because, despite that obvious fact, it appears to be the subject of debate within the Supreme Court.
Jackson’s comments about the code in interviews promoting her new memoir followed similar remarks this summer by Justice Elena Kagan, another Democratic appointee who herself made headlines when she acknowledged the shortcomings of an unenforceable code.
Jackson told NPR:
I think the question is whether there is something about the Supreme Court that distinguishes it from the mandatory ethics rules of the lower courts. At least so far, I have not seen a good reason why there should not be mandatory rules. But we are not there yet.
When the court issued the code in November after coming under criticism over ethics scandals involving Republican justices Clarence Thomas and Samuel Alito, the lack of an enforcement mechanism was glaring.
But it is not as if the Court has publicly voted on which justices would and would not favor an enforceable code. What we do know is that the code the justices agreed on is currently unenforceable; hence the attention paid to the justices’ rare public comments on the matter.
A mandatory code of ethics is one of the Supreme Court reforms that President Joe Biden and Vice President Kamala Harris have announced their support for.
Certainly, if achieved, this would not necessarily have as big an impact as a serious structural change like term limits, another measure supported by Biden. And there are several ways to achieve this. How such a code would be enforced. But That is to have the conversation rather than avoid the subject entirely. Jackson’s comments are the latest evidence that at least some Supreme Court justices think it’s a conversation worth having.
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